On the Merits.
The plaintiff and defendants own adjoining properties. Defendants’ property forms the lower river corner of Prytania and Philip streets and fronts upon the former street. Plaintiffs’ property fronts on the lower side of Philip street and runs towards Jackson street. The rear line of defendants’ property is the woods side line of the plaintiff’s. The contest in this case has arisen from defendants having opened several windows in a wooden structure built on their property, at or near its rear line, which windows enable persons standing at the same to look over plaintiff’s property. Plaintiff has a residence upon her property, but there is a wide open space between it and the rear line of that of the defendants’. The structure referred to is described by a witness as “a wooden structure” and as having been in its present position prior to plaintiff’s ownership and possession of the .property; it *792having been built about 1870. One of plaintiff’s witnesses states that he had made an examination of the building and gives the following as the result of the same: “I found that this shed belonged to the corner property, which fronts on Prytania street. It is practically on the division line between that property and the Bryant property. I found the foundation of the shed, or rather that corner of the foundation nearer Philip street, to be exactly on the line. I mean the brick foundation. The other corner was two inches on the Sholars property. I found that the wood work or weather boarding extended about an inch beyond the brick, over towards the Bryant side, so that midway of the shed, assuming the shed to be on a straight line from corner to corner, the weather boarding would be exactly on the line; at the end near the street the weather boarding would extend over the Bryant property one inch, at the other end of the shed the weather boarding would be away from the line and over on the Sholars side one inch. I took a plumb line and measured it and I found the wall leaning over on the Bryant side,' and that point was, I suppose, twelve or fifteen feet from the ground, just as high as an ordinary ladder would reach. I noticed the windows in it; I saw several openings apparently new windows — just windows of glass, the glass had, I think, been painted or colored in some way, I don’t think there were any blinds. The windows were in the second story; the shed is old, probably twelve or fifteen years— perhaps older; it is beginning to show age; there is a little decay in spots. I do not know how many of the openings or windows were in the first half of the wall beginning at Philip street. I did not look at the openings. I am satisfied at least one was there; whether there were two or three I could not say. It seems to me that the openings .are about equally distributed along the front of the wall. The projection of the wall or leaning over on the Bryant side increase as you approach Philip street. The Philip street corner is already one inch on Bryant’s side. On the corner further from Philip street I should say the top of it would probably be exactly on the line. Between the two ends there seems to be some projection on the Bryant property. The structure is not a brick wall, the foundation is brick and the superstructure is wood; just a brick foundation a few inches below the ground; it is a wooden wall — whát would be called a weather boarding wall.”
After the windows had been cut, the plaintiff tendered the defendants forty dollars as being one-half of the value of the wall; the object of the tender being to convert the wall into a “party wall.” Defendants refused to accept payment.
*793It seems that the structure had been, at some time prior to the defendants’ ownership and possession of the property, put into repair; some repairs had been placed upon the building, and that plaintiff had contributed something to the cost of the repairs.
The building, as a whole, is a wooden house or building belonging to the defendant; evidently intended to have been built entirely -upon defendants’ property. The pillars of the house are upon it, but a part of the weather boarding runs over the division line and upon plaintiffs property.
Defendants do not contest the right of the plaintiff to force them to move the structure further back upon their own property if any portion of it overlaps the division line, but the plaintiff asserts no such claim in this suit. Plaintiffs object is not to force the building entirely back upon the defendants’ property, but leaving it where it is, to insist upon defendants closing the windows which overlook her property and destroy, as she asserts, the privacy of her home. Plaintiff does not pretend to have an intention of erecting a wooden, still less a brick, building on the division line of the properties. The motive and purpose of the suit, as we have said, is the protection of the privacy of her establishment. Idas she, in aid of that object, the legal right to insist upon the defendants closing the windows which they have opened in the rear end of their building ? It is a misnomer to call it a “wall”; it is nothing more than the side of a wooden house.
Article 668 of the Civil Code declares that “although one be not at liberty to make any work- by which his neighbor’s building may be damaged, yet every one has the liberty of doing on his own ground whatever he pleases, although it should cause inconvenience. Thus he who is not subject to any servitude originating from a particular agreement in that respect may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbor’s house, because this act occasions only an inconvenience, but not a real damage.”
There can be no question that the defendants would have the right to tear this wooden structure down entirely and to rebuild a precisely similar one with the windows in its rear end situated just as are those in the existing building, without the possibility of the plaintiff objecting- thereto, nor of the right of the defendants to draw the existing building further back upon their property. If this were done, in what way would the situation of the plaintiff, as to "privacy ” have been *794bettered. A foot or two more or less backward or forward would not affect the situation at all in this respect. If the defendants’ properly up to date was a vacant lot and they were to build upon it an open platform in the centre of their lot, so raised as to give a full view of the plaintiff’s premises, plaintiff could raise no legal objection thereto, nor could she object to its position being gradually shifted towards the division line of the properties, certainly not until the division lino itself was reached. If the reaching of that line would work a change in the defendants’ rights, it would not be brought about by reason of any illegal exercise by them of an increased right of view, but in aid of the plaintiff’s right to make use of the division line for building purposes. Of course the defendants have no right tq cross the line with their building, for that would be an invasion of ¡plaintiffs ownership, and Article 697 of the Civil Code declares that no one shall build galleries, balconies, or other projections on ihe border of an estate so that they extend beyond the boundary line which separates it from the adjoining estates. Any one violating this provision of the law could be forced to draw back the buildings or projections. If the exercise by the defendants of a legal right to construct a building on their own premises, with windows looking into' or over the premises of the plaintiff, would subject the latter to annoyance from that fact their remedy would be to remove the annoj'ance by means of screens on their own premises (Taylor vs. Boulnare, 35 Ann. 469).
It is true that Article 696 of the Code is to the effect that “one neighbor cannot, without the consent of the other, open any window or aperture through the wall held in common id any manner whatever, not even with the obligation on his part to confine himself to lights, the frames of which shall be so fixed within the wall that they can not be opened,” but this presupposes the existence of a “party wall” held in common, and the side of a wooden house is not a party wall held in common. It is not a “wall” at all; and if it were, it. is not held in common between the parties.
Under the heading of “De quels murs la mitoyennement peut étre achetée. Dalloz & Vergé, under Article 661 C. N. (Nos. 7 and 8), says: “L’art 661 ne concerne que les murs proprement dits et non pas'toutes clotures en general (Civ. C. 15, Dec. 1857, D. P. 58, 1-56). Ainsi le máitre d’une cloture en planche peut. refuser d’en ceder mitoyenneté a son! voisin sauf a ce dernier dans les villes et faubourgs a exiger que cette cloture soit remplaeée par un mur etabli a frais com-mun suivant l’art 663.”
*795Conceding for argument that the side of a wooden house or building could be properly called a “cloture en planche,” and that in the condition and situation of the properties in the City of New Orleans the owner of a wooden fence could be forced to contribute to the substitution for it of a brick wall at common expense; there has been no such desire expressed and no such demand made upon the defendants.
The plaintiff claims that she has the right to demand of the defendants that the side of one of defendants’ wooden buildings, built on or near the division line, be made a “wall” in common by paying to them one-half of its value. "We are not of that opinion. The Articles of the Civil Code on the subject of party walls were enacted from public policy in aid of general interests for the solidity and safety of brick or stone buildings and not in aid of the rights of one neighbor to secure the “privacy” of his property by restrictions upon the rights of ownership cf ¡mother neighbor.
"Whenever, if evei-j the plaintiff should seek to build a brick or stone building upon her side line, it will be time enough for her to claim a legal right of controlling the defendants’ exercise of their right of ownership. We do not understand that plaintiff’s rights in this respect stand in any danger of the assertion by the defendants of a right of servitude of view acquired by prescription; that right, when! so exercised, will be found intact. This subject will be found discussed in Oldstein vs. Building Association, (44 Ann. 496).
For the reason assigned, it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and that the injunction which issued herein be and the same is dissolved and set aside, and that plaintiff’s demand, as asserted, be rejected at her costs.
The right of the plaintiff to have the two-story building referred to in the pleadings and evidence removed from her property entirely, if it trenches upon it, is reserved.
Eehearing refused.